COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 71935 DIANE MCCURDY : : JOURNAL ENTRY Plaintiff-appellee : : AND vs. : : OPINION CLEVELAND BOARD OF ZONING : APPEALS : : Defendant-appellant : : : DATE OF ANNOUNCEMENT : JANUARY 29, 1998 OF DECISION : : CHARACTER OF PROCEEDINGS : Civil appeal from : Court of Common Pleas : Case No. CV-308517 : JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: ROBERT A. WEIBLE, ESQ. DENNIS A. MATEJKA, ESQ. EDWARD M. DEANGELO, ESQ. Assistant Law Director 3200 National City Center Room 106, City Hall 1900 East Ninth Street 601 Lakeside Avenue Cleveland, OH 44114 Cleveland, OH 44114 PATTON, J. Defendant-appellant Cleveland Board of Zoning Appeals -2- ( board ) appeals the trial court's decision reversing its denial of plaintiff-appellee Diane McCurdy's application for a variance. McCurdy and her family own a parcel of property abutting Interstate 90 in the city of Cleveland. Her tenant is CT Indus- tries which is owned by her brother. There are three signs located on the property which advertise to the drivers on Interstate 90. One of the signs has been in place for over ten years while the other two signs were erected within the last three years. Initially, Cleveland issued a number of non-compliance notices based on violations of section 350.10 of the Codified Ordinances of the city of Cleveland. This section states the minimum setback from the freeway for signs shall be three hundred thirty (330) feet. The billboards in question were significantly closer to the highway than 330 feet. McCurdy applied to the city for permits to allow the signs to remain. The city denied these permits and McCurdy appealed to the board to obtain a variance for the signs. At a hearing McCurdy, through counsel, presented her case to the board arguing the denial of the permits resulted in a hardship and a deprivation of a substantial property right. She also argued the granting of the variance would not be contrary to the intent of the zoning code. The board denied McCurdy's appeal for a variance so McCurdy appealed, pursuant to R.C. 2506, to the court of common pleas. The common pleas court reversed the board's decision finding: The decision of the Cleveland Board of Zoning Appeals denying appellant's variance was illegal, arbitrary and unreasonable and not supported by a preponderance of substantial evidence. Matter is reversed and remanded to -3- the Board of Zoning Appeals. It is ordered that a variance be granted to appellant. The board timely filed a notice of appeal from this decision and on appeal to this court presents two assignments of error. Because the two assignments of error are interrelated they will be addressed together. They state as follows: THE TRIAL COURT ERRED IN REVERSING THE REASONABLE DECISIONS OF THE BOARD OF ZONING APPEALS AND THE COMMIS- SIONER OF BUILDING AND HOUSING. THE TRIAL COURT ERRED IN ORDERING THE GRANT OF A VARIANCE WHERE THE APPELLEES FAILED TO MEET THE REQUIREMENTS OF THE CLEVELAND CODIFIED ORDINANCES AND THE OHIO SUPREME COURT. The board argues its decision to deny McCurdy the permits was reasonable. It claims the distance restriction has been in existence since 1990 and signs have been regulated by Cleveland since 1964. Thus, its ruling was simply an affirmation that McCurdy is obligated to comply with the law and there is nothing unreasonable or arbitrary about it. In support, the Board alleges McCurdy failed to meet the three requirements necessary for the granting of a variance based on section 329.03(b). McCurdy maintains the trial court did not abuse its discretion in reversing the decision of the Board. She contends there is ample evidence to conclude that she met the three requirements for a variance pursuant to section 329.03(b). The record reveals, McCurdy applied for a variance to allow for the use of three signs along Interstate 90. However, section 350.10(h) sets forth the minimum distance a sign must be set back -4- from a highway is 330 feet. McCurdy's entire property is within 330 feet of the highway and therefore the use of her signs violate section 350.10(h). This court reviews the trial court's ruling under R.C. 2506 under the standard of discretionary review. Kisil v. Sandusky (1984), 12 Ohio St.3d 30. Thus, our concern is whether as a matter of law the trial court has abused its discretion. Id. An abuse of discretion exists when the trial court acts unreasonably, arbitrarily, or unconscionably. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. Thus, our function is not to weigh the evidence. Dudukovich v. Housing Authority (1979), 58 Ohio St.3d 217, 219. Our question is whether, as a matter of law, there was a preponderance of reliable, probative and substantial evidence to support the trial court's reversal of the board's denial of McCurdy's application for a variance. Cleveland Codified Ordinance section 329.03 controls the Board's power to grant a variance. This section has been inter- preted by the Ohio Supreme Court, in Consolidated Mgmt., Inc. v. Cleveland (1983), 6 Ohio St.3d 238, 242, as follows: It is necessary that the board of zoning appeals read, and apply, each subsection of Ordinance Section 329.03 in pari materia. Accordingly, in order for the board to grant a specific variance, subsections 329.03(b)(1), (2) and (3) require that each applicant prove that the zoning classification presents an unneces- sary hardship or practical difficulty to the intended use of the property; that refusal of the variance will deprive the owner of substantial property rights; and that the granting of the variance would not be contrary to the intent of the zoning code. (emphasis in origi- nal). -5- Based on the testimony submitted at the hearing, the Board refused McCurdy's application for a variance for the following reasons: 1. No exceptional local condition exists in this vicinity to justify the Board in making the variance requested. 2. Granting the appeal would be detrimental to the general welfare of the neighbors and to the value of their properties and would be contrary to the intent and purpose of the zoning ordinances. 3. In being refused this appeal the owner will not suffer an unreasonable hardship since he is not denied any use of property not also denied other owners in that district similarly situated; At the hearing, McCurdy, represented by counsel, argued she met the three requirements of section 329.03 which provides for the granting of a variance. Regarding the first requirement, an unnecessary hardship, McCurdy argued her entire property was closer to the highway than the mandated 330 feet. She claimed this was a unique hardship because other property owners in the area who displayed signs did not share this characteristic. The second requirement, refusal of the variance deprives owner of substantial property right, was met by McCurdy because her sixteen (16) year stream of income from advertising the signs will dissipate. The third requirement, granting of the variance would not be contrary to the intent of the zoning code, McCurdy argues was also met. She claimed the signs advertise respectable products, the signs are safe like street signs and do not overly advertise, and the signs increase the revenue, exposure, and profitability for local businesses. In -6- support, McCurdy submitted a number of diagrams, photographs, a copy of a prior lease, and the testimony of her brother. In contrast, Cleveland argued there is no hardship or practical difficulty regarding the intended use of the property because [the] lot is not 330 feet. So, there's no way he can conform. That's not a hardship. Regarding McCurdy's loss of property rights, Cleveland argued [h]e never had those property rights to begin with to allow him to put billboards when he purchased it. And he should know that. Cleveland maintained further the sign has never been legal and the only way the sign could now be legal is if it was a non-conforming use, in place before the zoning code was enforced, but McCurdy never previously made this argument. Cleveland then presented the testimony of two lay witnesses. The first to testify was a representative from the West Town Community Development Corporation. He stated his group supports full adherence to the code and the signs are a very unsightly entrance into our city as you're coming into Cleveland. The second lay witness to testify was a representative from the Community Development Department. She stated this is a created hardship and an enrichment of a property owner. She testified further this is an opportunity for the tenant to work with the city to properly advertise his business and that in no way should the variance be passed. After reviewing the transcript of the hearing, it is clear Cleveland did not read, apply, or address the third requirement of -7- section 329.03, that the granting of the variance would not be contrary to the intent of the zoning code. In contrast, McCurdy presented testimony and several exhibits in support of her argument that she satisfied the requirements of section 329.03. In its findings the Board stated [g]ranting the appeal would be detrimental to the general welfare of the neighbors and to the value of the properties and would be contrary to the intent and purpose of the zoning ordinances. However, a review of the record reveals this finding is not substantiated by the record. As stated above, Cleveland did not address the third requirement of section 329.03. Therefore, we hold the trial court did not abuse its discretion in reversing the board and find there was reliable, probative and substantial evidence to support this decision. Judgment affirmed. -8- It is ordered that appellee recover of appellant her costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court direct ing the Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. NAHRA, P.J. CONCURS. SPELLACY, J.,CONCURS IN JUDGMENT ONLY. JUDGE JOHN T. PATTON N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .